Scalia, Huck brilliantly illuminate path forward as SCOTUS nukes Marriage -- with a slow-death Dirty Bomb the US House can disarm

By Steven Baer

SCOTUS nukes One-Man, One-Woman Marriage -- with a slow-death Dirty Bomb the U.S. House can disarm

Justice Scalia, Gov. Huckabee brilliantly dissent -- and illuminate the path forward -- while Boehner weirdly concurs

In a narrow 5-4 majority opinion which attempts to dictate to Congress on borrowing and spending (for federal financial benefits for lesbian, bisexual, homosexual and transgender pairs in sodomatrimony states), the Supreme Court of the United States (SCOTUS) has attempted to usurp the Article One authority of Congress to appropriate resources from the US Treasury as Congress so determines.  

House Speaker John Boehner and his House Republican Majority -- who represent the First Branch of the federal government under the Constitution's Separation of Powers -- laudably and correctly argued for the right of Congress to favor One-Man, One-Woman Marriage via codified federal benefits.  

Now, we'll see if Boehner & Co ACTUALLY have the stones to guard the Constitutional status of Congress and the Institution of Marriage.  

Boehner's predictably Low-T statement yesterday, however, indicated not a drop of mojo to uphold the Article One authority of "the People's House" over borrowing and spending.  Here's his Boehn-head "concurrence" with Anthony Kennedy and the Windsor majority, as SCOTUS kneed the Speaker and his House in their scrota.  

Link: http://m.speaker.gov/press-release/boehner-statement-doma-decision

OFFICE OF THE SPEAKER
For Immediate Release
June 26, 2013
Contact: Michael Steel, Brendan Buck, Kevin Smith 202-225-0600
 
Boehner Statement on DOMA Decision

WASHINGTON, DC - House Speaker John Boehner (R-OH) issued the following statement today in response to the Supreme Court's decision in the United States v. Windsor.  The Bipartisan Legal Advisory Group of the House of Representatives intervened in the case to defend DOMA's constitutionality.  

"Congress passed the Defense of Marriage Act on an overwhelmingly bipartisan basis and President Clinton signed it into law.  The House intervened in this case because the constitutionality of a law should be judged by the Court, not by the president unilaterally.  While I am obviously disappointed in the ruling, it is always critical that we protect our system of checks and balances.  A robust national debate over marriage will continue in the public square, and it is my hope that states will define marriage as the union between one man and one woman."  

Come again?  

Mr. Speaker, how can "we protect our system of checks and balances" if you and your submissive sheep -- like lambs to the slaughter -- never, ever, ever under any circumstances assert the Congressional power of the purse and credit card?

How can it be that "the constitutionality of a law should be judged by the Court, not by the president unilaterally" -- yet you and your GOP Majority, sworn to uphold same said Constitution, are nothing but limp wrists or limp noodles when it comes to financially defending your authority? 

How can you simply abandon the Constitutional prerogative of Congress over expenditures -- to decide what the USA will and will not use the US Treasury for -- and just punt all so-called "defense of Marriage" to the States?  How about a House GOP DODOMA?    

How can you look yourself in the mirror each morning -- hung over or not -- and just wimpy-wait for SCOTUS to drop the next shoe into your groin (on US Treasury benefits for LGBT marrieds who move to NOT-GAY States; on forcing NOT-GAY States to recognize LGBT wedlock or warlocks from other states; on forcing NOT-GAY States and Govs to embrace a Roe-style right of sodomatrimony; on banning Judeo-Christian colleges and churches from all federal benefits -- IRS tax exemption, Pell Grants, student loans, etc -- if they don't capitulate on the Torah and Romans 1 in favor of the new national LGBT-SSM public policy dictated by SCOTUS)?        

If the House GOP does not NOW uphold hetero-monogamy via Congressional authority over the US purse and credit card, yesterday's SCOTUS nukes (to enshrine sodomatrimony in California, in the Treasury and in US public policy) will inevitably function as a slow-death, radioactive dirty bomb to kill One-Man, One-Woman hetero-monogamy continentally. 

As both Justice Scalia and Gov. Huckabee assert, below and on the attached, Congress has the Article One authority to say "NO" to ANY expenditure from the Treasury, including: 

• US debt-financed abortion subsidies for Planned Parenthood and the Global Fund; US debt-financed rollout of the Obamacare killing mandate (forcing 50+ employers, including religious employers, to facilitate abortion pills and devices to kill the children of their employees); 
• US debt-financed federal enforcement of a (pending, made-up) sodomatrimony right against 3/4ths of the nation's States and Governors; US debt-financed CO2 regulation; 
• US debt-financed green pork; 
• US debt-financed corporate welfare; 
• US debt-financed full employment for the Beltway area; and 
• US debt-financed benefits favoring lesbianism, bisexuality, homosexuality, child brides, bigamy, threesomes, polygamy, polyandry, brother-sister incest, mother-son incest, bestiality, pederasty,  etc.  

Seeing it akin to the barbarism of slavery, Lincoln and abolitionist Republicans forcefully opposed polygamy and child brides to uphold hetero-monogamy and natural, Genesis One marriage.  

Yet, it remains to be seen whether Boehner and his House GOP featherweights have any testosterone to assert the authority of Congress over US borrowing and Treasury outflows -- or whether they'll keep bending over, like naive new inmates in a penitentiary shower, for anything and everything POTUS and SCOTUS wish to ram up their aisles.  

Sadly, whether it's Obamacare killing, Planned Parenthood butchery, VAWA, green pork & paganism or federally-funded LGBT anything, there are plenty of spayed, neutered and transgendered Beltway lapdogs of the Right who, even as we write, keep offering limp-wristed counsel and comfort to Boehner & Co to just keep bending over, on the down-low, to at all costs avoid any appearance of manhood or dignity.

But, NOT Justice Antony Scalia, and NOT former Gov. Mike Huckabee.  

Read their brilliant SCOTUS dissents below and attached, literal and figurative. 

Finally, this TV spot, running righht now in Boehner's OH 8 district and expanding into other House GOP districts this summer, rather tidily sums-up how Log Cabinistas are wrecking "the People's House". 

The full DOMA-Windsor opinion and dissents are here.  Excerpts from Scalia's brilliant dissent are below.  Note especially the highlights.

JUSTICE SCALIA, with whom JUSTICE THOMAS joins,and with whom THE CHIEF JUSTICE joins as to Part I,dissenting.

This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today's opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation.

The Court's errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America. The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges' intrusion into their lives. They gave judges, in Article III, only the "judicial Power," a power to decide not abstract questions but real, concrete "Cases" and "Controversies"….

The opinion spends three pages discussing famous, decades-long disputes between the President and Congress— regarding congressional power to forbid the Presidential removal of executive officers, regarding the legislative veto, regarding congressional appointment of executive officers, and regarding the pocket veto—that would surely have been promptly resolved by a Congress-vs.-the-President lawsuit if the impairment of a branch's powers alone conferred standing to commence litigation.

But it does not, and never has; the "enormous power that the judiciary would acquire" from the ability to adjudicate such suits "would have made a mockery of [Hamilton's] quotation of Montesquieu to the effect that 'of the three powers above mentioned . . . the JUDICIARY is next to nothing.'"

To be sure, if Congress cannot invoke our authority in the way that JUSTICE ALITO proposes, then its only re-course is to confront the President directly. Unimaginable evil this is not. Our system is designed for confrontation. That is what "[a]mbition . . . counteract[ing] ambition," The Federalist, No. 51, at 322 (J. Madison), is all about.  If majorities in both Houses of Congress care enough about the matter, they have available innumerable ways to compel executive action without a lawsuit—from refusing to confirm Presidential appointees to the elimination of funding. (Nothing says "enforce the Act" quite like ". . . or you will have money for little else.") But the condition is crucial; Congress must care enough to act against the President itself, not merely enough to instruct its lawyers to ask us to do so.

Placing the Constitution's entirely anticipated political arm wrestling into permanent judicial receivership does not do the system a favor. And by the way, if the President loses the lawsuit but does not faithfully implement the Court's decree, just as he did not faithfully implement Congress's statute, what then? Only Congress can bring him to heel by . . . what do you think?   Yes: a direct confrontation with the President.…

There are many remarkable things about the majority's merits holding. The first is how rootless and shifting its justifications are. For example, the opinion starts with seven full pages about the traditional power of States to define domestic relations—initially fooling many readers, I am sure, into thinking that this is a federalism opinion.But we are eventually told that "it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution," and that "[t]he State's power in defining the marital relation is of central relevance in this case quite apart from principles of federalism" because "the State's decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import." Ante, at 18.

But no one questions the power of the States to define marriage (with the concomitant conferral of dignity and status), so what is the point of devoting seven pages to describing how long and well established that power is? Even after the opinion has formally disclaimed reliance upon principles of federalism, mentions of "the usual tradition of recognizing and accepting state definitions of marriage" continue. See, e.g., ante,at 20. What to make of this? The opinion never explains.

My guess is that the majority, while reluctant to suggest that defining the meaning of "marriage" in federal statutes is unsupported by any of the Federal Government's enumerated powers, 4 [Footnote 4: Such a suggestion would be impossible, given the Federal Government's long history of making pronouncements regarding marriage—for example, conditioning Utah's entry into the Union upon its prohibition of polygamy. See Act of July 16, 1894, ch. 138, §3, 28 Stat. 108 ("The constitution [of Utah]" must provide "perfect toleration of religious sentiment," " Provided, That polygamous or plural marriages are forever prohibited")] nonetheless needs some rhetorical basis to support its pretense that today's prohibition of laws excluding same-sex marriage is confined to the Federal Government (leaving the second, state-law shoe to be dropped later, maybe next Term). But I am only guessing.

Equally perplexing are the opinion's references to "the Constitution's guarantee of equality." Ibid. Near the end of the opinion, we are told that although the "equal protection guarantee of the Fourteenth Amendment makes [the] Fifth Amendment [due process] right all the more specific and all the better understood and preserved"—what can that mean?—"the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does." Ante, at 25. The only possible interpretation of this statement is that the Equal Protection Clause, even the Equal Protection Clause as incorporated in the Due Process Clause, is not the basis for today's holding.

But the portion of the majority opinion that explains why DOMA is unconstitutional (Part IV) begins by citing Bolling v. Sharpe, 347 U. S. 497 (1954), Department of Agriculture v. Moreno, 413 U. S. 528 (1973), and Romer v. Evans, 517 U. S. 620 (1996)—all of which are equal protection cases.5 [Footnote 5: Since the Equal Protection Clause technically applies only against the States, see U. S. Const., Amdt. 14, Bolling and Moreno, dealing with federal action, relied upon "the equal protection component of the Due Process Clause of the Fifth Amendment," Moreno, 413 U. S., at 533.]

And those three cases are the only authorities that the Court cites in Part IV about the Constitution's meaning, except for its citation of Lawrence v. Texas, 539 U. S. 558 (2003) (not an equal-protection case) to support its passing assertion that the Constitution protects the "moral and sexual choices" of same-sex couples, ante, at 23.

Moreover, if this is meant to be an equal-protection opinion, it is a confusing one. The opinion does not resolve and indeed does not even mention what had been the central question in this litigation: whether, under the Equal Protection Clause, laws restricting marriage to a man and a woman are reviewed for more than mere rationality. That is the issue that divided the parties and the court below, compare Brief for Respondent Bipartisan Legal Advisory Group of U. S. House of Representatives (merits) 24–28 (no), with Brief for Respondent Windsor (merits) 17–31 and Brief for United States (merits) 18–36 (yes); and compare 699 F. 3d 169, 180–185 (CA2 2012) (yes), with id., at 208–211 (Straub, J., dissenting in part and concurring in part) (no). In accord with my previouslyexpressed skepticism about the Court's "tiers of scrutiny"approach, I would review this classification only for its rationality. See United States v. Virginia, 518 U. S. 515, 567–570 (1996) (SCALIA, J., dissenting).

As nearly as I can tell, the Court agrees with that; its opinion does not applystrict scrutiny, and its central propositions are taken from rational-basis cases like Moreno. But the Court certainly does not apply anything that resembles that deferential framework. See Heller v. Doe, 509 U. S. 312, 320 (1993) (a classification "'must be upheld . . . if there is any reasonably conceivable state of facts'" that could justify it).

The majority opinion need not get into the strict-vs.-rational-basis scrutiny question, and need not justify its holding under either, because it says that DOMA is unconstitutional as "a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution," ante, at 25; that it violates "basic due process" principles, ante, at 20; and that it inflicts an "injury and indignity" of a kind that denies "an essential part of the liberty protected by the Fifth Amendment," ante, at 19. The majority never utters the dread words "substantive due process," perhaps sensing the disrepute into which that doctrine has fallen, but that is what those statements mean.

Yet the opinion does not argue that same-sex marriage is "deeply rooted in this Nation's history and tradition," Washington v. Glucksberg, 521 U. S. 702, 720–721 (1997), a claim that would of course be quite absurd. So would the further suggestion (also necessary, under our substantive-due-process precedents) that a world in which DOMA exists is one bereft of "'ordered liberty.'" Id., at 721 (quoting Palko v. Connecticut, 302 U. S. 319, 325 (1937)).

Some might conclude that this loaf could have used a while longer in the oven. But that would be wrong; it is already overcooked. The most expert care in preparation cannot redeem a bad recipe. The sum of all the Court's nonspecific hand-waving is that this law is invalid (maybe on equal-protection grounds, maybe on substantive-due process grounds, and perhaps with some amorphous federalism component playing a role) because it is motivated by a "'bare . . . desire to harm'" couples in same-sex marriages. Ante, at 20. It is this proposition with which I will therefore engage.

As I have observed before, the Constitution does not forbid the government to enforce traditional moral and sexual norms. See Lawrence v. Texas, 539 U. S. 558, 599 (2003) (SCALIA, J., dissenting). I will not swell the U. S. Reports with restatements of that point. It is enough to say that the Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol.

However, even setting aside traditional moral disapproval of same-sex marriage (or indeed same-sex sex), there are many perfectly valid—indeed, downright boring—justifying rationales for this legislation. Their existence ought to be the end of this case. For they give the lie to the Court's conclusion that only those with hateful hearts could have voted "aye" on this Act.

And more importantly, they serve to make the contents of the legislators' hearts quite irrelevant: "It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive." United States v. O'Brien, 391 U. S. 367, 383 (1968). Or at least it was a familiar principle. By holding to the contrary, the majority has declared open season on any law that (in the opinion of the law's opponents and any panel of like-minded federal judges) can be characterized as mean-spirited.

The majority concludes that the only motive for this Act was the "bare . . . desire to harm a politically unpopular group." Ante, at 20. Bear in mind that the object of this condemnation is not the legislature of some once Confederate Southern state (familiar objects of the Court's scorn, see, e.g., Edwards v. Aguillard, 482 U. S. 578 (1987)), but our respected coordinate branches, the Congress and Presidency of the United States. Laying such a charge against them should require the most extraordinary evidence, and I would have thought that every attempt would be made to indulge a more anodyne explanation for the statute.

The majority does the opposite—affirmatively concealing from the reader the arguments that exist in justification. It makes only a passing mention of the "arguments put forward" by the Act's defenders, and does not even trouble to paraphrase or describe them. See ante, at 21. I imagine that this is because it is harder to maintain the illusion of the Act's supporters as unhinged members of a wild-eyed lynch mob when one first describes their views as they see them.

To choose just one of these defenders' arguments, DOMA avoids difficult choice-of-law issues that will now arise absent a uniform federal definition of marriage. See, e.g., Baude, Beyond DOMA: Choice of State Law in Federal Statutes, 64 Stan. L. Rev. 1371 (2012). Imagine a pair of women who marry in Albany and then move to Alabama, which does not "recognize as valid any marriage of parties of the same sex." Ala. Code §30–1–19(e) (2011).

When the couple files their next federal tax return, may it be a joint one? Which State's law controls, for federal-law purposes: their State of celebration (which recognizes the  marriage) or their State of domicile (which does not)? (Does the answer depend on whether they were just visiting in Albany?) Are these questions to be answered as a matter of federal common law, or perhaps by borrowing a State's choice-of-law rules? If so, which State's?

And what about States where the status of an out-of-state same-sex marriage is an unsettled question under local law? See Godfrey v. Spano, 13 N. Y. 3d 358, 920 N. E. 2d 328 (2009). DOMA avoided all of this uncertainty by specifying which marriages would be recognized for federal purposes. That is a classic purpose for a definitional provision.

Further, DOMA preserves the intended effects of prior legislation against then-unforeseen changes in circumstance. When Congress provided (for example) that a special estate-tax exemption would exist for spouses, this exemption reached only opposite-sex spouses—those being the only sort that were recognized in any State at the time of DOMA's passage. When it became clear that changes in state law might one day alter that balance, DOMA's definitional section was enacted to ensure that state-level experimentation did not automatically alter the basic operation of federal law, unless and until Congress made the further judgment to do so on its own. That is not animus—just stabilizing prudence.

Congress has hardly demonstrated itself unwilling to make such further, revising judgments upon due deliberation. See, e.g., Don't Ask, Don't Tell Repeal Act of 2010, 124 Stat. 3515.The Court mentions none of this. Instead, it accuses the Congress that enacted this law and the President who signed it of something much worse than, for example, having acted in excess of enumerated federal powers—or even having drawn distinctions that prove to be irrational.

Those legal errors may be made in good faith, errors though they are. But the majority says that the supporters of this Act acted with malice—with the "purpose" (ante, at 25) "to disparage and to injure" same-sex couples. It says that the motivation for DOMA was to "demean," ibid.; to "impose inequality," ante, at 22; to "impose . . . a stigma," ante, at 21; to deny people "equal dignity," ibid.; to brand gay people as "unworthy," ante, at 23; and to "humiliat[e]" their children, ibid. (emphasis added).

I am sure these accusations are quite untrue. To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions.

To hurl such accusations so casually demeans this institution. In the majority's judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statuteis to act (the majority is sure) with the purpose to "disparage," "injure," "degrade," "demean," and "humiliate" our fellow human beings, our fellow citizens, who are homosexual.

All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani  generis, enemies of the human race.

* * *

The penultimate sentence of the majority's opinion is a naked declaration that "[t]his opinion and its holding are confined" to those couples "joined in same-sex marriages made lawful by the State." Ante, at 26, 25. 

I have heard such "bald, unreasoned disclaimer[s]" before. Lawrence, 539 U. S., at 604. When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with "whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Id., at 578. Now we are told that DOMA is invalid because it "demeans the couple, whose moral and sexual choices the Constitution protects," ante, at 23—with an accompanying citation of Lawrence.

It takes real cheek for today's majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority's moral judgment in favor of same-sex marriage is to the Congress's hateful moral judgment against it. I promise you this: The only thing that will "confine" the Court's holding is its sense of what it can get away with.

I do not mean to suggest disagreement with THE CHIEF JUSTICE's view, ante, p. 2–4 (dissenting opinion), that lower federal courts and state courts can distinguish today's case when the issue before them is state denial of marital status to same-sex couples—or even that this Court could theoretically do so. Lord, an opinion with such scatter-shot rationales as this one (federalism noises among them) can be distinguished in many ways. And deserves to be. State and lower federal courts should take the Court at its word and distinguish away.

In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today's opinion. As I have said, the real rationale of today's opinion, whatever disappearing  trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by " 'bare . . . desire to harm'" couples in same-sex marriages. Supra, at 18. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status….

In sum, that Court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the "personhood and dignity" which state legislatures conferred upon them, will of a certitude be similarly appalled by state legislatures' irrational and hateful failure to acknowledge that "personhood and dignity" in the first place. Ante, at 26. As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.

By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage toits traditional definition. Henceforth those challengers will lead with this Court's declaration that there is "no legitimate purpose" served by such a law, and will claim that the traditional definition has "the purpose and effect to disparage and to injure" the "personhood and dignity" of same-sex couples, see ante, at 25, 26. The majority's limiting assurance will be meaningless in the face of language like that, as the majority well knows. That is why the language is there.

The result will be a judicial distortion of our society's debate over marriage—a debate that can seem in need of our clumsy "help" only to a member of this institution.  As to that debate: Few public controversies touch an institution so central to the lives of so many, and few inspire such attendant passion by good people on all sides.

Few public controversies will ever demonstrate so vividly the beauty of what our Framers gave us, a gift the Court pawns today to buy its stolen moment in the spotlight: a system of government that permits us to rule ourselves. Since DOMA's passage, citizens on all sides of the question have seen victories and they have seen defeats. There have been plebiscites, legislation, persuasion, and loud voices—in other words, democracy. Victories in one place for some, see North Carolina Const., Amdt. 1 (providing that "[m]arriage between one man and one woman is the only domestic legal union that shall be valid or recognizedin this State") (approved by a popular vote, 61% to 39%  on May 8, 2012),6 are offset by victories in other places for  others, see Maryland Question 6 (establishing "that Maryland's civil marriage laws allow gay and lesbian couples to obtain a civil marriage license") (approved by a popular vote, 52% to 48%, on November 6, 2012).7

Even in a single State, the question has come out differently on different occasions. Compare Maine Question 1 (permitting "the State of Maine to issue marriage licenses to same-sex couples") (approved by a popular vote, 53% to 47%, on November 6, 2012)8 with Maine Question 1 (rejecting "the new law that lets same-sex couples marry") (approved by a popular vote, 53% to 47%, on November 3, 2009).9

In the majority's telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one's political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today's Court can handle.

Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide. But that the majority will not do.

Some will rejoice in today's decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winnersof an honest victory, and the losers of the peace  that comes from a fair defeat. We owed both of them better.

I dissent.

 

Now, if you haven't read it already, see Gov. Huckabee's attached "dissent" -- and the path which he and Justice Scalia light going forward:  BOEHNER & CO MUST CUT OFF THE MONEY.